On May 30, 2013, the USCIS released the EB-5 Policy Memorandum. As stated by the USCIS: “the purpose of this memorandum (PM) is to build upon prior policy guidance for adjudicating EB-5 applicants and petitions. Prior to policy guidance, to the extent it does not conflict with this PM, remains valid unless and until rescinded.” The memo Multiple articles have already been published pointing out the highlights of the memo, so I would like to take this time to concentrate on the comments, thoughts, and reactions of others. Some feel that the memorandum is promising and while others are a little skeptical.

Joe Whalen posted an excellent article regarding the memo and expresses his concerns. In relation to interim or bridge financing on pages 15 & 16 of the memorandum, Joe writes:

“I would use caution... Please do not let yourself get into a position where USCIS

believes that the EB-5 investor shopped around for a successfully completed

project to simply ‘buy-out.’ USCIS still has an eye open for fraud and deception.”

In relation to material changes, found on pages 22&23 of the memo, Joe also expresses his concern about investors being harmed:

“...I fe ar that it too will lead investors into being harmed by RCs that try to ‘push it’

beyond reason. The language in approval notices directing RCs to seek

amendments when ‘investment opportunities arise outside of the approved

‘geographic area’ and ‘industry categories’ was just rendered moot and void by

this Memo. That said, where will the USCIS ‘draw the line in the sand?’”

and it should provide sufficient initial understanding of the process to USCIS

adjudicators. In a way, it is EB5 101 – and it is comforting to know that the

adjudications should be made keeping in mind the core legal principles for

immigration through investment.”

Lastly, Mona Shah and Yi Song contributed an analysis of the final EB-5 policy memorandum. They point out that many of the issues in the policy memorandum are not new, just more defined. In their analysis Mona and Yi emphasizes the following areas of the EB-5 program: indirect job creation outside of the regional center, assets acquisition of an existing business, loan model in non-regional EB-5 projects, and project failure after the I-526 approval. In relation to indirect job creation outside of the regional center, they wrote:

“Further to the new Policy Memo, a regional center is no longer required to file a 924 Amendment Petition if the amendment is in the regional center’s industries of focus, its geographic boundaries, its business plans, or its economic methodologies. Thus with regard to the job creation section and the regional center amendment section, it is fair to conclude that indirect jobs created outside the geographic boundaries of a regional center can be counted towards the EB-5 job creation even without filing the regional center amendment.”

In the last part of their analysis, Mona and Yi discuss project failure after the I-526 approval. They note that “the final policy memorandum clarifies that jobs that should be created within a year (reasonable time requirement) of the two-year anniversary of the alien’s admission as a conditional permanent resident or adjustment to conditional permanent resident.”

To conclude, as Mona and Yi have stated in their article, providing clear and practical guidelines on the EB-5 program is an on-going process. The EB-5 Policy Memorandum has made some improvements in the program, but still leaves skepticism.